My 2008 article on the employment at will rule, and how courts and legislatures have modified the rule to protect employees.

1. Manchin Professional Building
1543 Fairmont Avenue, Suite 207
Fairmont, West Virginia 26554
Voice: 304-333-5261
Fax: 304-367-1868
Email: dcapuder@capuderfantasia.com
Web: www.capuderfantasia.com
The Good News and Bad News
on Employment at Will
for Lorman Education Services’ seminar: “Employee
Discipline and Discharge: How to Avoid Employment
Litigation in West Virginia” in Morgantown, WV,
August 27, 2008
Drew M. Capuder
CAPUDER FANTASIA PLLC
CF

2. Biography: Drew M. Capuder
Licensed in West Virginia and Texas; practicing law 23 years.
Drew Capuder’s practice consists primarily of employment litigation and consulting,
and also includes mediation, commercial litigation, and business consulting.
Author of Drew Capuder’s Employment Law Blog; http://capuderfantasia.com/blog/
Gina Fantasia’s practice focuses on real estate law (especially for banks), insurance
law, and business advice.
Teaching: “Legal and Ethical Issues in Media,” at Fairmont State University (2005 to
present).
Teaching: Legal Writing at University of Houston Law School (1992-1998).
Several appearances during the last 5 years on WAJR’s radio program “Ask the
Experts”; appearance for WBOY TV on the WVU-Rodriguez lawsuit.
Several Lectures and Television Appearances for the Texas Society of CPAs from
1992-1998
JD, University of Houston Law School, 1985; BA, University of Southwest Louisiana
(now named University of Louisiana), in Music Theory and Composition
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Drew M. Capuder, Capuder Fantasia PLLC

3. Classic statement of the employment at will
rule (page 5)
An employer may terminate an employee for:
Good reasons,
Bad reasons, and
No reason at all.
But not for a reason specifically prohibited by the law.
Skaggs v. Elk Run Coal Company, Inc., 198 W.Va. 51, 78, 479 S.E.2d
561, 588 (1996).
“[I]n the absence of some contractual or legal provision
to the contrary, an employment relationship may be
terminated, with or without cause, at the will of either
the employer or the employee.” Bine v. Owens, 208 W. Va.
679, 682, 542 S.E.2d 842, 845 (2000).
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Drew M. Capuder, Capuder Fantasia PLLC

4. Examples of good reason, bad reason, no reason (p.5)
An employer may terminate an employee for all of the following reasons, and here are examples:
No reason:
“Drew, you’re fired.
Why boss?
No reason at all Drew—I just woke up this morning and said to myself that I thought I’d fire the first poor
schmuck that I saw this morning.”
No reason, lawful.
Bad reason:
“Drew, you’re fired.
Why boss? Heck, I’ve been working here for 37 years and I’ve won all performance and humanitarian awards.
Just last Tuesday, boss, you and the Dalai Lama said I was the greatest person who ever lived.
Well, Drew, I think you stole 10 dollars out of the cash register yesterday.
Yikes, boss, the cash register is constantly under video surveillance.You can watch the video and you’ll see that I
didn’t steal the 10 dollars.You know I’ve taken a vow of poverty and give all my salary to charity, after making
sure grandma’s iron lung is properly maintained.
Drew, you know I’m bored by TV. And I never said that I was a darned monument to justice. You’re fired, and
you’re ugly, too.”
Bad reason, lawful.
Good reason:
“Drew, you’re fired.
Why boss?
Drew, yesterday, you shot 12 co-workers to death in the company lunch room.
Boss, Fred shot 14 co-workers last week and you didn’t fire him! That’s discrimination!!
Come on, Drew, you know the SWAT team shot Fred to death before I could fire him. Hell, I even did CPR on
Fred so I could fire him before he died, but I couldn’t revive the SOB. And by the way, Drew, while you were
killing everybody in the lunch room yesterday, I was meeting with auditors, and I found out that you embezzled
12 billion dollars last year. So Drew, you’re fired, and 13 different law enforcement agencies are here to help you
collect your personal belongings.”
Good reason, lawful.
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Drew M. Capuder, Capuder Fantasia PLLC

5. History of Employment Discrimination Laws
Focus on Federal and West Virginia Discrimination
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Drew M. Capuder, Capuder Fantasia PLLC

6. Limits on statutory exceptions to at will rule
(not in article)
“It is important that litigants and lower courts do not
read too much into today’s ruling. To be sure, our
discrimination laws are not a form of job
assurance for handicapped individuals or any
other protected class members. Employers retain
the right to restructure jobs and exercise business
judgment, including even bad judgment.
Employees can be let go for any reason or for no
reason, provided that the reason is not a
prohibited one. [citations omitted] Accommodation
regards efforts that address an individual’s ability to
perform a job, not his or her entitlement to it.”
Skaggs v. Elk Run Coal Company, Inc., 198 W. Va. 51, 79, 479
S.E.2d 561, 589 (1996) (emphasis added)
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Drew M. Capuder, Capuder Fantasia PLLC

7. Protected characteristics under WV (and
federal) anti-discrimination laws (page 6)
From the West Virginia Human Rights Act, W. Va. Code §
5-11-9(3), you can’t fire (or otherwise disadvantage) an
employee:
Because of the employee’s race
Because of the employee’s religion
Because of the employee’s color
Because of the employee’s national origin
Because of the employee’s ancestry
Because of the employee’s sex
Because of the employee’s age
Because of the employee’s blindness or disability
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Drew M. Capuder, Capuder Fantasia PLLC

8. Protected characteristics under WV
Workers’ Compensation Act (pages 6-7)
From the West Virginia Workers’ Compensation Act, W.
Va. Code § 23-1-1 et seq., you can’t fire (or otherwise
disadvantage) an employee:
Because the employee received or attempted to receive benefits
under the Act, § 23-5A-1
Because the employee is “off work due to a compensable injury”
and “is receiving or is eligible to receive temporary total disability
benefits”, § 23-5A-3(b)
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Drew M. Capuder, Capuder Fantasia PLLC

9. Termination in violation of public policy
under the Harless case (pages 7-8)
Under the doctrine enunciated in Harless v. First National
Bank of Fairmont, 162 W. Va. 116, 246 S.E.2d 270, 275
(1978) (emphasis added), a discharge is actionable where the
“employer's motivation for the discharge contravenes
some substantial public policy principle.”
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Drew M. Capuder, Capuder Fantasia PLLC

10. Categories of claims under the Harless
case (pages 7-8)
The categories thus far of prohibited reasons under the Harless doctrine are:
Category Example
Because the employer pressured the employee to Example: Employer fired employee for refusing to operate
break the law and the employee refused vehicle with brakes in unsafe working condition in
violation of specific W.Va. statutes. See, e.g., Lilly v. Overnight
Transportation Co., 188 W.Va. 538, 425 S.E.2d 214 (1992).
Because the employee complained about the Example: Employee complains that his employer bank is
employer breaking the law (regardless of whether overcharging customers in violation of consumer
the complaining employee himself was pressured protection law, and employer retaliates and fires the
to break the law) employee, see, e.g., Harless v. First National Bank of Fairmont,
162 W.Va. 116, 246 S.E.2d 270, 275 (1978).
Because the employer insisted that employee do Example: Employee refused to take a mandatory drug test
something which violated a right of the employee, and got fired; the demand for a drug test violated the
and the employee refused employee’s right of privacy, and the employer’s
termination of the employee was actionable, Twigg v.
Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990).
Because the employee did something which the law Example: Employee in convenience store is being robbed,
regards as a right in self defense shoots the robber, and employer fired the
employee; employee exercised right of self-defense and
could not be fired for doing so, Feliciano v. 7-Eleven, Inc.,
210 W.Va. 740; 559 S.E.2d 713 (2001).
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Drew M. Capuder, Capuder Fantasia PLLC

11. Thoughts on Preventing Employment
Litigation (pages 13-25)
What causes risk in the work place? (things, documents,
conduct, people)
Who might complain and who might sue? (employees,
former employees, others)
Points in time at which risks arise (drafting policies,
creating positions, key employment decisions, reductions
in force, plant closings)
What can you do to control the risk?
Forums in which risks and exposure are decided (grievance
proceedings, EEOC, arbitration, court, mediation, trial)
Possible outcomes of litigation (the good and the bad)
Negative effects of litigation (so we can focus on avoidance,
and control the negative effects)
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Drew M. Capuder, Capuder Fantasia PLLC

12. What causes risk in the workplace
(pages 14-17)?
People
Supervisors, co-workers, HR, personnel
Customers
Vendors
Conduct
Decisions: termination, hiring, promotion, raises, evaluations, benefits,
investigations
Treatment of employees: sexual conduct, anger, profanity, humiliation, disparaging
remarks, favoritism, violence, favoritism, ostracizing, denial of accommodations
Breaking the law: discrimination, dangerous conduct, illegal business practices
Physical things
Physical facilities and layout
Computers, phones
Documents
Policies, emails, memos, letters
Specific: termination letters, performance reviews, job offer letters, disciplinary
memos, grievance decisions, etc.
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Drew M. Capuder, Capuder Fantasia PLLC

13. Who might complain and who might sue
(pages 17-18)?
Current employees. Types:
The complainer
The lawsuit seeker
The bad employee
The good employee
Former employees
Same types as the current employees, except (probably) for the good employee
Others
Relatives of the employees who think they were wronged
Friends of the employees who think they were wronged
Co-workers (they might “oppose” mistreatment of others)
Customers
Vendors
Lawyers of current and past employees
The good lawyer
The stupid lawyer
The dishonest lawyer
(Your paper trail might dissuade some of these lawyers from filing suit)
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Drew M. Capuder, Capuder Fantasia PLLC

14. Points in time at which risk arises (pages
18-19)?
Drafting/formulation of Termination;
policies/procedures; Phone calls/discussions with
Creating a position; employees after
Posting a position; termination (including the
Interviews; exit interview);
Hiring; Sending an explanation for
termination (including
Reviews; responding to proceedings
Discipline; such as claims for
Investigations; unemployment benefits);
Grievance proceedings; Reductions in force; and
Promotions; Plant closings.
Raises;
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Drew M. Capuder, Capuder Fantasia PLLC

15. What can you do to control the risk (pages
19-20)? Examine the following:
Current practices at the Our practices, if those practices
company; are imperfect, and
(Note: In other words, what are
Current documents that the inherent risks attached to
relate to the event/item; the event/situation, and what
What are we doing wrong?; are the risks attached to our
imperfect handling of it?);
What are we doing that How can we reduce the
may be failing to comply risks:
with the law (that is Changes in policies/procedures;
potentially a very different Changes in practices;
issue from what we are Changes in documents;
doing wrong)?; Changes in training; and
What risks arise out of Changes in follow up.
both:
The event, even if we are
handing it perfectly,
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Drew M. Capuder, Capuder Fantasia PLLC

16. Forums in which risks and exposure are
addressed (pages 20-21)?
Informal meetings and discussions;
Internal grievance processes;
Union grievance proceedings;
Equal Employment Opportunity Commission;
Department of Labor (federal and state);
West Virginia Human Rights Commission;
Arbitration;
Mediation;
Court:
Trial courts, and
Appellate courts.
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Drew M. Capuder, Capuder Fantasia PLLC

17. Possible outcomes in litigation
(pages 21-22)?
You (your company) did nothing wrong, and there is
no realistic possibility that you will be adjudicated to
have violated the rights of the plaintiff-employee.
You very likely did nothing wrong, and a reasonable
judge or jury should find in your favor, but there is a
realistic possibility that a judge or jury could find
against you.
There is significant evidence that you did something
wrong, and a reasonable judge or jury could find for
you or against you.
There is very significant evidence that you did
something wrong, and it is much more likely than not
that a judge or jury will find against you.
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Drew M. Capuder, Capuder Fantasia PLLC

18. Limitations on your ability to evaluate
your risk in litigation (page 22)?
You know facts (or believe you know facts) which the
jury will never know, so any reliance on those facts will
improperly skew an evaluation of that the jury will likely
conclude.
You don’t know facts the jury will likely learn at trial from
your opponent. No matter how well you know the facts
of a particular employment dispute, it is unlikely that you
will be able to walk away from trial without having
experienced substantial surprises.
Your evaluation of facts, and your predictions of what
should happen at trial, is burdened with a wide range of
personal, financial, and business biases or predispositions
that create significant doubt as to whether your
evaluation of likely outcome will be a predictor for what a
jury or judge might conclude.
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Drew M. Capuder, Capuder Fantasia PLLC

19. Negative effects of litigation, many of
which can be controlled (page 23-24)?
Diverted (wasted) management bad feelings amongst other
time. employees. Lawsuits frequently
Litigation expense generate in co-workers a
Attorneys’ fees and expenses for the
supportive attitude toward the
employer. former employee suing you.
Expenses for employees involved in the Encouraging litigation from other
litigation (testifying, meeting with employees.
counsel, etc.)
The value of the lost time of your Negative effects on the employer’s
employees. reputation, internally, and outside
If the employee prevails, the reasonable the workplace.
attorneys’ fees and expenses incurred by Possible negative effects on
the employee’s lawyer.
recruiting.
Co-workers disrupted through
litigation meetings, depositions, Potential negative effects on
hearings, and trials business.
Lost employee time.
Gossip in the workplace about the Possible, discouraging certain customers
litigation, including large amounts of from doing business with you.
inaccurate gossip Negative publicity with the media.
Negative effects on other Damage awards from the jury or
employee’s morale, and stirring up jury; settlements.
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Drew M. Capuder, Capuder Fantasia PLLC